RAM AVATAR SONI versus MAHANTA LAXMIDHAR DAS AND ORS. on 24 October 2018

[2018] 14 S.C.R. 39

RAM AVATAR SONI

v.

MAHANTA LAXMIDHAR DAS AND ORS.

(Civil Appeal Nos. 10684-10685 of 2018)

OCTOBER 24, 2018

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Will – Will in question executed by one ‘MND’ was probatedin favour of respondent no.1 – Appellant filed suit seeking revocationof the probate so granted – Application filed by the appellant u/Or.XXVI, r.10A CPC to send the Will in question to the hand-writingexpert for comparison with the documents, available in the court inan earlier Probate Case of 1982, containing admitted signatures of‘MND’ – Application allowed by District Judge – Order set asideby the High Court – Propriety of – Held: If the scientific investigationof the document in question facilitates the ascertaining of truth, inthe interest of justice, naturally it has to be ordered – District Judgewas right in allowing the application to send the Will in question tohand-writing expert – Further, the High Court was not right insaying that there was no specific allegation disputing thegenuineness of the signature of ‘MND’ – To challenge thegenuineness of the Will inter alia indicates challenge to thegenuineness of the signature of ‘MND’ – Impugned order set aside– Will along with the documents containing admitted signatures of‘MND’ be sent to the hand-writing expert for comparison – Afterreceipt of the report of the hand-writing expert, trial court to proceedwith the trial in accordance with law.

Allowing the appeals, the Court

HELD: 1.1 If the scientific investigation of the documentin question facilitates the ascertaining of truth, in the interest ofjustice, naturally it has to be ordered. Having regard to the issueraised in the suit, the District Judge was right in allowing theapplication to send the Will in question dated 12.03.1989 to hand-writing expert. [Para 8][43-D]

1.2 The High Court was not right in saying that, in the plaint,the appellant has challenged only the genuineness of the Will

39

A

B

C

DE

F

G

H

Aand nowhere made allegations with regard to the genuineness ofthe signature of ‘MND’. To challenge the genuineness of theWill inter alia indicates challenge to the genuineness of thesignature of ‘MND’. The High Court was not right in saying thatthere was no specific allegation disputing the genuineness of thesignature of ‘MND’. The impugned order is liable to be set aside.BAs directed by the District Judge, the Will dated 12.03.1989 alongwith the documents set out in the petition filed by the appellantand in the order of the District Judge containing admittedsignatures of ‘MND’ be sent to the hand-writing expert forcomparison. After receipt of the report of the hand-writing expert,Cthe trial court shall proceed with the trial in accordance with law.[Paras 9, 10][43-E-H; 44-A]CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 10684-10685 of 2018.

From the Judgment and Order dated 30.06.2016 of the High CourtDof Orissa at Cuttack in CMP No. 684 of 2016 and order dated 20.09.2016in RVWPET No. 207 of 2016.

Ranji Thomas, Sr. Adv., Aditya Sharma, K. S. Rana,Dr. V. P. Appan, Advs. for the Appellant.EAjit Kr. Sinha, Sr. Adv., Prabhash Kr. Yadav, Manoj Kr. Mishra,Mansoor Ali, Ms. Rubina Jawed, Naresh Kumar, Advs. for theRespondents.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Leave granted.F

2. These appeals arise out of the judgment dated 30.06.2016 passedby the High Court of Orissa at Cuttack in CMP No.684 of 2016 in andby which the High Court allowed the appeal filed by the first respondentthereby setting aside the order of the District Judge passed under OrderXXVI Rule 10A CPC thereby allowing the appellant’s prayer for sendingGthe signature of the Will in question to hand-writing expert for comparisonwith Testator Natabar Das’s admitted signatures.

3. The appellant herein filed C.S. No.2/34 of 2008/2003 seekingrevocation of the Probate granted in favour of the first respondent i.e.Laxmidhar Mahapatra in Probate Misc. Case No.14/5 of 2000/1997.H

In the Probate Miscellaneous Case, the Will in question executed byMahanta Natabar Das was the subject matter in dispute but accordingto the appellant/plaintiff, the said Natabar Das never executed any Willas Testator in favour of the first respondent-Laxmidhar Mahapatra. It isstated in the plaint that late Mahanta Natabar Das during his life timefiled Probate Case No.19/13 of 1982 for Probate of the Will executed inhis favour by one Jasoda Dasi and in the said proceeding, the admittedsignature of Mahanta Natabar Das are said to be available in the petition,affidavit, vakalatnama, deposition and the signature of Mahanta NatabarDas appearing in those documents are required to be sent to the Hand-writing expert for comparison along with the Will in question and whetherthe signature in the Will in question is that of said Natabar Das or not?On the other hand, the case of the first respondent is that the Will wasexecuted by the Testator Mahanta Natabar Das and it was a genuinedocument and it was legally probated by the competent Court.

4. Since the appellant seeks revocation of the Probate Case No.14/5 of 2000/1997 on the ground that the Will of Natabar Das is a fraudulentone, the crux of the issue is the genuineness of the Will executed byNatabar Das in favour of the first respondent. The petition was filed bythe appellant under Order XXVI Rule 10A CPC to send the Will inquestion to the hand-writing expert, allegedly executed by Natabar Dasin favour of the first respondent and probated in Probate Misc. CaseNo.14/5 of 2000/1997 with the documents containing admitted signaturesof Natabar Das which are available in the court in the earlier ProbateCase No.19/13 of 1982.

5. The application filed by the appellant under Order XXVIRule 10A earlier came to be allowed by District Judge, Puri vide orderdated 18.06.2013. The first respondent challenged the said order dated18.06.2013 before the High Court in WP(C) No.14977 of 2013. Byorder dated 14.08.2014, the High Court set aside the order dated18.06.2013 and directed the court below to consider the application filedunder Order XXVI Rule 10A at a later stage of the proceedings that isafter closure of the evidence from both sides. The High Court alsodirected disposal of the trial proceedings in CS No.2/34 of 2008/2003 atan earlier date. The trial commenced and parties adduced their evidence.At that stage, the District Judge vide order dated 15.03.2016 allowedthe application filed by the appellants under Order XXVI Rule 10A CPCdirecting that the Will dated 12.03.1989 be sent to hand-writing expert AB

C

D

E

F

G

H

Afor comparison with the admitted signatures of Natabar Das which areavailable in the petition, affidavit, vakalatnama and deposition in ProbateCase No.19/13 of 1982. This order has been set aside by the HighCourt by the impugned judgment.

6. To resist the appeal and the prayer of the appellant to send theBWill dated 12.03.1989 to hand-writing expert, the respondents inter aliahave raised various grounds as under:-

(i) Probate of the Will executed by Mahant Natabar Das dated12.03.1989 was granted in favour of the first respondentLaxmidhar Das vide order dated 24.04.2001 in Probate Misc.CCase No.14/5 of 2000/1997 in accordance with theprocedure;

(ii) The office of Commissioner Endowments (Odisha),Bhubaneshwar vide order dated 25.01.2002 in regard toMisc. Case No.179/2001 decided an application datedD04.01.2001 filed by the first respondent Mahanta LaxmidharDas and given possession and management of the saidInstitution of Kabir Chaura; and

(iii) The office of Divisional Inspector of Endowment,Bhubaneshwar vide Report No.165 dated 04.09.2009 underESection 41 of the Orissa Hindu Religious Endowments Actissued in favour of the first respondent in regard to thepossession and management of the said Math and themanagement and possession was allowed in favour of thefirst respondent.

Reliance is also placed upon the order passed by the CommissionerFof Endowments in RC No.6/2015 dated 13.05.2016 in the revision filedby Mahanta Gopi Das against the order dated 28.01.2015 passed by theAssistant Commissioner of Endowments, Bhubaneshwar in OS No.7/2007.

7. In all the proceedings before the concerned authorities ofGEndowments, it appears that the authorities have passed various ordersin favour of the first respondent-Laxmidhar Das mainly based upon theorder of Civil Judge (Senior Division) in Probate Case No.14/5 of 2000/1997 dated 24.04.2001. The first respondent has been declared to bethe person in management of the Institution only on the basis of the saidHorder of Probate dated 24.04.2001.

8. As pointed out earlier, the appellant has filed the suit CS No.2/34 of 2008/2003 challenging the genuineness of alleged Will executed byNatabar Das in favour of the first respondent and seeking revocation ofthe probate of the will. As submitted by the learned senior counselappearing for the appellant, in the said suit, issue No.3 has been framedthat “Has the defendant No.1 by practising fraud managed to getthe Will probated, which was a fabricated and manufactured one?”Hence, the genuineness of the Will in question needs to be decided thatis whether the signature in the Will dated 12.03.1989 allegedly executedby Natabar Das could be ascertained only by sending the document tohand-writing expert. As discussed above, earlier in WP(C) No.14997of 2013, while setting aside the order of the District Judge dated18.06.2013, the High Court has observed that the application filed underOrder XXVI Rule 10A CPC can be considered at a later stage of theproceedings that is after closure of the evidence from both sides. Aftertheir witnesses were examined, the plaintiff/appellant again reiteratedthe prayer for sending the Will in question to hand-writing expert. If thescientific investigation of the document in question facilitates theascertaining of truth, in the interest of justice, naturally it has to be ordered.Having regard to the issue raised in the suit, the District Judge was rightin allowing the application to send the Will in question dated 12.03.1989to hand-writing expert.

9. The High Court was not right in saying that, in the plaint, theappellant has challenged only the genuineness of the Will and nowheremade allegations with regard to the genuineness of the signature ofMahanta Natabar Das. To challenge the genuineness of the Will interalia indicates challenge to the genuineness of the signature of MahantaNatabar Das. In our view, the High Court was not right in saying thatthere was no specific allegation disputing the genuineness of the signatureof Mahanta Natabar Das. In the earlier WP(C) No.14977 of 2013when the High Court has observed that the prayer under Order XXVIRule 10A CPC can be considered at a later stage, the High Court wasnot right in setting aside the order of the District Judge dated 15.03.2016in C.S. No.2/34 of 2008/2003 and the impugned order is liable to be setaside.

10. In the result, the impugned order of the High Court in CMPNo.684 of 2016 dated 30.06.2016 is set aside and these appeals areallowed. As directed by the District Judge in his order dated 15.03.2016, AB

C

D

E

F

G

H

44 SUPREME COURT REPORTS [2018] 14 S.C.R.

Athe Will dated 12.03.1989 along with the documents set out in the petitionfiled by the appellant and in the order of the District Judge containingadmitted signatures of Mahant Natabar Das be sent to the hand-writingexpert for comparison. After receipt of the report of the hand-writingexpert, the trial court shall proceed with the trial in accordance with law.

BDivya Pandey

Appeals allowed.

C

D

E

F

G

H